We run into click-through agreements every day. We click on them without thinking about what they say. The number of people who read and understand all the clauses of each of the licenses presented to them probably looks like a true-scale model of our solar system, with that group of interested and knowledgeable people something about the size of Pluto.

Usually, we click these licenses with even a slight bit of annoyance. Occasionally, as a nod to that annoyance, there might be a cute note next to the assent tick box that reads: “The lawyers made us do this.” This cuteness belies the importance of the rights that one is signing away by agreeing to these terms of service.

Last fall, the editor of Serials Review, an Elsevier journal, approached me to write an editorial about a project that NISO is launching. Under the principle that any publicity is good publicity, I agreed to contribute the article. I wrote the article then e-mailed it off to the editor. Not long after, an automated message arrived from the manuscript tracking software, describing the review process and thanking me for the contribution. As part of that process, I was asked to digitally “sign” a copyright transfer agreement prior to publication.

Copyright transfer agreements are generally an industry standard — a requirement of publication for nearly every publisher. As publisher for my own organization’s publications, I fully appreciate the challenges of managing copyright transfer agreements. This process is no small task and can be fraught with legal and management complexity. To have some control over the process requires some templates and limited variation on what terms are agreed, with whom, and under what circumstances. The alternative is a coordination nightmare, which could open the publisher up to liability for infringement or for gaps in its potential service offerings if the correct rights are not secured. This management process has been — and likely still is — a challenge for most publishers.

One the one hand, Elsevier’s manuscript tracking system makes the process of copyright assignment easy and feeds into a streamlined rights management system. It thereby reduces variation and streamlines an otherwise complex business process. But from an author’s perspective, there is no obvious place for nuance. What if I want to retain certain rights for certain things? What if I want to choose to pay for open access distribution? Where can I make those decisions? Why does this process have to be a yes or no proposition?

The process for transferring the rights entailed a few tick boxes that included options for government employees and work-for-hire. These options automatically inserted clauses into the agreement that for example struck the ownership clauses, since government employees may not copyright the intellectual property produced in the course of their work. However, if one selected the single author or work-for-hire options, there was no alternative to simply signing over complete and total ownership of the copyright to Elsevier. This is the case for many publishers, so there is no reason to call out Elsevier in particular for this situation.

It is very likely that the systems that Elsevier put into place is capable of managing a range of copyright selections and that the agreements are being stored in a rights management back-end system of some sort. Certainly, these systems are capable of capturing and expressing the complexity of rights management. If the system can handle the options of government employees, it certainly has the capacity to offer a limited range of assignment options. But from a business efficiency perspective, it simply is not in the interest of the publisher to provide people those options.

Of course, one might respond, “You can choose to publish somewhere else.” Yes, this is true. I am fairly certain that when the article is published, some might find it ironic that the article about open access metadata will be published in a non-OA title, not via an author-pays distribution model. Also, I have in the past pushed for copyright ownership with this particular publisher and have been granted it. I chose not to pursue that this time for a few reasons. In this case, I thought to go through the process as many thousands of others have and see the strengths and weaknesses in it.

As one of the process’ strengths, it certainly was simple. Perhaps this simplicity is also its problem. If copyright is so valuable that the publishing world regularly and rightly fights vehemently for its protection, than copyright transfer shouldn’t be so simple as if nothing were riding on the decision. A simple “Click here. (Our lawyers make us do this.)” approach gives the authors the perception that it is no big deal and as little riding on it as a click through online terms of service.

In the end, much as when I simply click through website terms and conditions, I know that I am giving up something — possibly something of modest value. I know that each small decision either supports or detracts from the world that some are hoping to create. Many fervently wish for a more level playing field when it comes to rights and responsibilities for content creators and distributors. Sometimes, it is just easier to move with the crowd. The systems that some publishers have put into place facilitate that ease. Of course, publishers benefit from the efficient movement of people through that process.

The click-through copyright assignment is one way to do so. The process would be only slightly more complex if an author were given options, especially if the systems are already electronically supported on the back end. For example, the author might want the right to republish documents (after some embargo) on my own site or reprint them in other future collected works without dealing with the publisher again to do so. Perhaps, the author’s institution required retention of some rights, such as repository hosting. Alternatively, allowing or rejecting republication of the content is a decision that the author wouldn’t want to leave up to the publisher.

There are likely authors who would like to take advantage of those options. As one data point, MIT continues to see modest use of its copyright addendum, even though the addendum is no longer required by its community as a component of its current open access policy. Other similar addendums exist and continue to see use.

Whether there are enough authors who are interested in moving forward property rights ownership in scholarly communications to force publishers to advance these systems is an open question. However, it seems clear that publishers do not seem interested in fostering these nuances. It is unfortunate that in the service of efficiency, these choices are lost.

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About Todd A Carpenter

Todd is the Executive Director of the National Information Standards (NISO). He is focused on facilitating information exchange via standards, technology and business best practices within the US and internationally.

Discussion

Perhaps the reason is that unless a transfer of “all rights” is effected, the publisher cannot claim legal status as the copyright owner, but only as the owner of those specific rights transferred. There may be a good reason why a book publisher, for example, will want its name to appear in the copyright notice (e.g., to facilitate copyright registration), and it is technically an error to use the publisher’s name in the notice unless an “all rights” transfer has been effected. A journal publisher can use its name in the notice simply as copyright owner of the collective work, without having to pretend that it is the copyright owner of every article in each issue, however, so this rationale would not apply so well in the context of journal publishing.

David, Thank you for this point. It is true that a lot of publishers have adopted policies regarding assignment and do provide more flexibility in this area. As I noted, in the past I have negotiated with Elsevier for a license of rights rather than assignment, so even with Elsevier this is a possibility (although one I didn’t pursue in this particular case). The lack of options in the automated system, however, would easily lead authors to presume there were no other potential paths forward.

Reading the OUP policy, which includes granting of exclusive rights “in all media for all published content,” one has to wonder how this differs from a transfer of all rights, especially a transfer that in the contract leaves authors with all the rights that OUP’s contract does–unless OUP only seeks exclusive rights in the English language, which would be a significant limitation.

I was hoping this article had some insight in the legality of a click through agreement. Our process is cumbersome and annoying for authors. I suppose we could make it easier by not requiring copyright transfer but that’s not going to happen. I have been asking around and there appears to be no clear consensus that a click through CTA is legal. How can the publisher verify that the person actually clicking is the author? I would love an easier digital CTA.

As a employee of the Canadian federal government it is always a challenge when dealing with publishers because unlike US government employees the Canadian government retains copyright and under our law it cannot be signed away. This is similar to other countries who fall under “Crown Copyright” . Most of the time we are not only educating our employees but also publishers who lump us in under the US Government. It is always refreshing when I see some publishers who have a separate section for Crown Copyright.

Angela, click through agreements do have standing in US courts and are generally enforceable subject to “reasnable-ness” constraints. A number of court cases have supported the applications of “shrink wrap” licenses (where this was first applied to software purchases) to the click-through agreements we face on a daily basis. One significant ruling from 1997 in this area is the case, Groff v. America Online More recently, there have been some conflicting cases that highlight the need for reasonability including the Second Circuit case of Schnabel v. Trilegiant Corp .

Your question about the specifics of transferring rights via digital signatures in this case is one, as far as I am aware, that has not yet been addressed. The point you raise about ensuring that the person who is clicking is actually the person the agreement purports to be is a significant network challenge, which reaches to a variety of identity management problems that need to be addressed.

Recently introduced open-publishing-platforms, specifically those built on micro-licensing systems seem to provide solutions to these issues. Such platforms are still young, so their adoption is just beginning as well. But over time, however, I suspect micro-licensing digital publications will become the norm, which will be a blessing for authors and readers alike.

The mission of the Society for Scholarly Publishing (SSP) is "[t]o advance scholarly publishing and communication, and the professional development of its members through education, collaboration, and networking." SSP established The Scholarly Kitchen blog in February 2008 to keep SSP members and interested parties aware of new developments in publishing.
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The Scholarly Kitchen is a moderated and independent blog. Opinions on The Scholarly Kitchen are those of the authors. They are not necessarily those held by the Society for Scholarly Publishing nor by their respective employers.